Citation Nr: 0634096
Decision Date: 11/03/06 Archive Date: 11/16/06
DOCKET NO. 03-17 703 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in St. Louis, Missouri
THE ISSUE
Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
M. E. Larkin, Senior Counsel
INTRODUCTION
The veteran served on active duty from August 1944 to August
1946.
This matter was initially before the Board of Veterans'
Appeals (Board) on appeal from a May 2003 decision of the RO.
In March 2004, the Board denied the veteran's claim of
service connection for hearing loss and remanded the claim of
service connection for tinnitus in March 204 for additional
development.
In October 2005, the veteran's representative submitted a
statement requesting that the claim of service connection for
hearing loss be reopened. That is referred to the RO for
appropriate action.
In February 2006, the RO forwarded additional evidence
submitted by the veteran and his representative. Some of
that evidence is accompanied by a waiver of review of the
evidence by the agency of original jurisdiction and referral
to the RO is not required. 38 C.F.R. § 20.1404 (2006). The
evidence which is not specifically covered by the waiver is
not pertinent to the claim decided herein.
FINDING OF FACT
The veteran's tinnitus was not incurred in service and is not
related to service.
CONCLUSION OF LAW
The criteria for the establishment of service connection for
tinnitus are not met. 38 U.S.C.A. §§ 1110, 5107, 5103 (West
2002 & Supp. 2005); 38 C.F.R.§§ 3.303; 3.304 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
In correspondence dated in March 2004, VA satisfied its duty
to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002)
and 38 C.F.R. § 3.159(b) (2006). Specifically, VA notified
the veteran of information and evidence necessary to
substantiate the claim for service connection for tinnitus;
information and evidence that VA would seek to provide; and
information and evidence that the veteran was expected to
provide. The veteran was instructed to submit any evidence
in his possession that pertained to his claim. Although this
notice was delivered after the initial denial of the claim,
VA subsequently readjudicated the claim based on all the
evidence in December 2004, without taint from prior
adjudications. Thus, the veteran was not precluded from
participating effectively in the processing of his claim and
the late notice did not affect the essential fairness of the
decision.
Because service connection is denied, any question as to the
appropriate disability rating or effective date is moot, and
there can be no failure to notify prejudice to the veteran.
See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
VA has done everything reasonably possible to assist the
veteran with respect to his claim for service connection for
tinnitus. Service medical records have been associated with
the claims file. All identified and available treatment
records have been secured and the veteran was afforded a VA
examination.
Service connection may be granted for a disability resulting
from injury or disease incurred in or aggravated by active
service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To
establish service connection for the claimed disorder, there
must be medical evidence of a current disability; medical or,
in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and medical
evidence of a nexus between the claimed in-service disease or
injury and the current disability.
The veteran contends that his ears began "ringing"
following exposure to acoustic trauma in service. The
veteran's service medical records are negative for any
complaint of, treatment for, or diagnosis of tinnitus, and
the in-service medical examinations all report "normal"
findings as to the ears.
The report of a May 2003 VA audiological examination included
a recitation of the veteran's reported history of noise
exposure in service as well as post-service when he was a
pilot. The veteran reported that on one occasion in service
he went to sick bay and reported that his ears were
"ringing," but was told it would "go away." Following an
examination, review of the claims folder and notation of the
veteran's post-service history, the examiner offered the
opinion that the veteran's tinnitus was not related to
service.
A September 2005 statement from a private physician who
evaluated the veteran reported that he had reviewed the
veteran's service medical records, including his discharge
physical, which was characterized as rudimentary. The
physician commented that the veteran "surely" was exposed
to acoustic trauma during service and the exposure described
"could easily account for his tinnitus."
The private physician essentially concluded that tinnitus
"could" be related to service. A speculative opinion is an
insufficient basis for the granting of service connection.
See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v.
Derwinski, 2 Vet. App. 609, 611 (1992). The VA medical
opinion definitively opines that the veteran's tinnitus is
not related to service. That opinion was based on a review
of the claims folder, including the service medical records
and the veteran's reported post-service history. The Board
finds the VA opinion more probative.
The Board concludes service connection must be denied. As
the preponderance of the evidence is against the veteran's
claim, the benefit-of-the-doubt rule does not apply, and the
claim for service connection for tinnitus must be denied.
See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App.
49 (1990).
ORDER
Service connection for tinnitus is denied.
____________________________________________
J. E. DAY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs